Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?

Home > Blood Test > Travis County Hospitals and Sheriff's Department have finally figured out that Forced Blood Draws are a bad idea. When will Chief Acevedo figure it out?Posted on January 11, 2009 by Ken Gibson The Austin American Statesman reported in today's paper that Austin's Hospitals and the Travis County Sheriff's Department have informed the Austin Police Department (APD) that they will no longer collect blood for APD.Travis County's central booking facility had been the place where APD took their suspected DWI folks for the forced blood draw.  APD would rely on the Sheriff's nurses to do the forced blood draw.  (If the person refused, they would literally strap them in a chair so that the person couldn't move their arms, and then stick them with the needle)  The Sheriff's Department nurses stopped taking blood samples on January 1.  The Sheriff's Department has finally realized that the nurses main function should be to treat inmates, not collect evidence.  Further, they are deeply concerned about having to give nurse's overtime pay to appear in court after having been the one that draws the blood.Since the Sheriff's Office stopped doing the blood draws, APD started taking suspects to the hospital for the blood draws.  (I can't verifiy this, but I heard that the hospital was charging APD $400.00 per blood draw.)  The Hospital representatives have now told APD they don't want them to bring suspects to jail for blood draws.  The Hospital staff are worried about lawsuits, and are concerned because these types of blood draws are not being done for medical reasons.  Further, the Hospitals are worried about who will pay for the nurse's time when they are called to court to testify about the procedure they used to draw the blood.  Chief Acevedo thinks he has figured out a way around these problems.  APD contracted with a private phlebotomist to draw the blood of folks on Halloween weekend and New Years Eve.  APD agreed to pay the phlebotomist for three eight hour shifts during these weekends.  What APD didn't contract for was pay for this phlebotomist when she is drug into court to testify about the blood draws.  I predict there will be a lot of screaming from the phlebotomist when she finally figures out that the money she received per hour will now be reduced by the number hours she has to sit in court.In the Statesman article, an "expert in blood draws" states that "the state laws are clear that nurses and hospitals are protected from such suits.  What the "expert" appears to be referencing is Section 724.017 of the Texas Transportation Code.  The relevant section, section (b), states:

The person who takes the blood specimen under this chapter, or the hospital where the blood specimen is taken, is not liable for damages arising from the request or order of the peace officer to take the blood specimen as provided by this chapter if the blood specimen was taken according to recognized medical procedures.

However, this "expert" left out the final sentence to section (b):

This subsection does not relieve a person from liability for negligence in the taking of a blood specimen. 

Now, what the "expert" seems to be forgetting is that it will ultimately be up to a fact finder (Judge or Jury) to determine if negligence took place.Also, I bet no one informed the phlebotomists that they could be held liable for the blood draws either.  APD is treading on thin ice on this issue, and the sad part is, they either don't even realize it, or they just don't care.
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Former Massachusetts Police Chief Not Guilty in Gun Homicide Of Child-Attorney Sam’s Take

Today is the first holiday in quite a while that former Pelham Police Chief Edward Fleury (hereinafter, the “Ex-Defendant”) can breathe freely. The cloud of criminal allegations which has surroundied him since 2008 has finally lifted. He was finally acquitted of homicide charges in the tragic death of the late young Christopher Bizilj.

The Ex-Defendant’s firearms training company co-sponsored an annual Machine Gun Shoot and Firearms Expo at the Westfield Sportsman's Club, about 10 miles west of Springfield. Young Christopher’s dad brought the 8-year-old to the event. In doing so, he also signed a waiver acknowledging the risks and absolving anyone else of liability should something bad occur.

Something very bad did.

The boy was shooting a 9 mm micro Uzi at some pumpkins, when the gun kicked back and shot him in the head. The Ex-Defendant was not present in the area in which this took place, although the father and other personnel were.

Prosecutor William Bennett told the Springfield jury that the ExDefendant was criminally reckless in running the event because he allowed children to illegally shoot machine guns under the supervision of a firing range officer who was 15 at the time and didn't have a firearms license or certification.

The accident was shown, via graphic videotape, to the jury during the course of the trial.

The defense denied the allegations and blamed the boy's father, an emergency room physician, for allowing Christopher and his then-11-year-old brother to shoot such a dangerous weapon.

Neither the father nor the teenage range officer were charged.

The jury returned its verdict on its first full day of deliberations. They acquitted the Ex-Defendant of the involuntary manslaughter as well as three charges of furnishing machine guns to minors.

I have dealt with countless gun crimes in my quarter century experience in the criminal justice system. I have often told you that when a tragic accident happens, we always seem to need somebody to blame. Nowhere is this more true than with gun travesties like this one.

Fortunately for the Ex-Defendant, the jury was able to see beyond that need...maybe. The defense, of course, seemingly accepted that somebody may have to be to blame and pointed to the father. While perhaps distasteful to many, one would imagine that he was a more likely candidate than the Ex-Defendant.

Of course, I would not wave any victory flags for either the Ex-Defendant or the father. I doubt either is celebrating right now. A little boy is dead and you may be assured that this case has haunted and will continue to haunt the Ex-Defendant for a long time to come. As for the father...one can only imagine the turmoil he is in. I would venture to say that there is nothing any criminal justice system could do to him that is worse than what he is already doing to himself.

This case, however, may not end here. There is likely to be a civil law suit brought by the family against the Ex-Defendant and others (there are, by the way, others who were charged criminally and are awaiting trial).

“But, Sam...there was a waiver signed. How could the Ex-Defendant be charged or sued?”

First of all, a waiver cannot bar criminal prosecution. It is, if anything, an agreement between the father and the Ex-Defendant. While it is supposed to shield , in this case the Ex-Defendant and the company, that may make it hard for the father to prevail at trial, but there is alot of time and money between the initiation and trial of a civil lawsuit. In other words, it may be more expedient to settle. Further, there area are always legal arguments to make to discount the waiver.

If you are dealing with a civil lawsuit, you should get experienced civil litigation attorneys. Might I suggest the good folks at Altman & Altman, LLP?

If you are dealing with a potential criminal action, you want to have experienced counsel in that realm.

If you would like that to be me, , please feel free to call me to arrange a free initial consultation at 617-492-3000.

In the meantime, take a moment or two to think warm thoughts in the memory of a true American hero, Martin Luther King, Jr.

For the original story upon which today’s blog is based, please go to http://www.boston.com/news/local/breaking_news/2011/01/gun_fair_organi.html

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